On Wednesday, the Federal Communications Commission (“FCC”) held a public meeting where it voted to approve a Declaratory Ruling and Third Report and Order (“Order”) that substantially limits local control of public rights-of-way (“ROW”). As we previously reported, the Order applies aspects of the Federal Communications Act to municipal review of applications for small cell wireless facilities within the municipal ROW.
The Order restricts the kinds and types of limitations and standards that local governments can set for wireless facilities seeking access to the ROW. This includes limitations and standards set by local governments for aesthetic, safety, and system resiliency purposes. Standards must be in writing and cannot be unreasonably burdensome.
The Order creates a “shot clock” for reviewing applications for small cell wireless facilities. Municipal governments must review applications for collocation on preexisting structures within 60 days, and a deadline of 90 days for new builds. The review period applies for batched applications the same as they would for individual applications. While applications will not be deemed granted if a shot clock timeline is missed, the Order now allows wireless site applicants to seek expedited injunctive relief in court within 30 days of the missed deadline. The shot clock can be paused if the municipality notifies the applicant within 30 days of receiving the application that the application is substantially incomplete.
In response to local advocacy,, the Order will go into effect 90 days after it is published in the federal register, instead of the usual 30 days. The extended effective date was included in order to ease the burden on local governments needing to adapt to the changes. The Order can still be opposed through a filing of petitions for reconsideration (“PFR”). A petition for reconsideration requests that the commission review an action it has already taken. This is different from submitting comments during the open comment period. Given the controversial nature of the FCC’s action numerous PFR’s are expected to be filed. We will continue to keep you updated on this matter should there be further developments.
Local governments are the stewards of public rights-of-way, which are used by telecommunications providers to build their own networks. By narrowing the window and resources for evaluating small cell applications, the FCC is hindering local government’s ability to fulfill public health and safety responsibilities during the construction and modifications of small cell facilities. For more information on the Order and its impact, please see a recent post from our national affiliate, the National League of Cities.
Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x137.